03A20086
12-16-2002
William T. Arnold, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
William T. Arnold v. Department of the Air Force
03A20086
12-16-02
.
William T. Arnold,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20086
MSPB No. AT-0752-00-0594-I-1
DECISION
On August 15, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for
review of a Final Order issued by the Merit Systems Protection Board
(MSPB), concerning his claim of discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The petition is governed by the provisions of
the Civil Service Reform Act of 1978 and EEOC Regulations, 29 C.F.R. �
1614.303 et seq. For the reasons that follow, the Commission concurs
with the decision of the MSPB.
In a final agency decision (FAD), dated February 4, 2000, the agency found
that it had discriminated against complainant when it removed him from
the position of Sheet Metal Mechanic (Aircraft), WG-10, effective July
31, 1998.<1> The removal was based upon the agency's conclusion that
petitioner was medically disqualified from his position due to physical
limitations, resulting from hip replacement surgery. Specifically,
the agency determined that �management did not consider the petitioner
for some vacant positions because of a blanket exclusionary policy that
in effect [stated] that management would not consider any accommodation
for certain types of positions.� The FAD provided petitioner with notice
of his appeal rights to the MSPB.
By additional decision dated March 31, 2000, the agency advised petitioner
that it found no vacancies for which he was qualified, and therefore
he would not be offered reinstatement. The decision further explained
the agency's reasoning for finding that petitioner could not perform
the essential functions of two types of positions, identified as Sheet
Metal Mechanic and Production Controller, which were filled between
March 19 and July 31, 1998. The decision purported to �summarize[] the
efforts made by [the agency] to comply with [the FAD] as it relate[d]
to Equitable Relief.� The agency forwarded the decision to petitioner
with a cover letter dated April 4, 2000, and stated that the March 31st
decision was being sent �to inform [him] of the action taken to comply
with the findings� in the February 4, 2000 FAD. The decision, however,
made no mention of additional non-equitable relief to be addressed.
The April 4th cover letter advised petitioner that if he disagreed with
the March 31st decision, he could appeal to the Commission within 30 days.
The agency sent the decision to petitioner before he appealed to the MSPB.
By letter dated May 5, 2000, the agency advised petitioner that the
April 4th letter had erroneously included a notice of appeal rights to
this Commission and issued petitioner new appeal rights to the MSPB.
Complainant filed an appeal to the MSPB. On October 30, 2000 the MSPB
AJ issued an initial decision sustaining the removal based on a finding
that petitioner had not established that he could perform the essential
functions of a Production Controller without posing a direct threat
to health or safety. The initial decision became final on December 4,
2000, and petitioner filed an appeal with the Commission.
On July 26, 2001, the Commission referred complainant's underlying
complaint to the Board for further consideration on the basis that the
agency had already conceded discrimination because of its policy not to
consider accommodation as to certain positions. Arnold v. Department
of the Air Force, EEOC Petition No. 03A10042 (July 26, 2001). On August
30, 2001, the Board adopted the Commission's decision and forwarded the
appeal for adjudication of the issue of compensatory damages.
On January 15, 2002, petitioner timely refiled a motion for an award of
compensatory damages based upon the agency's finding of discrimination.
On January 25, 2002, the MSPB held a hearing. At the hearing, peititoner
testitifed that he collected Office of Workers' Compensation Programs
(OWCP) benefits equal to 75% of his former wage. Petitioner also averred
that his job loss changed his lifestyle. He maintained that he suffered
sleeplessness, acute loss of appetite and indigestion, and withdrawal.
He further asserted that he attended an accounting class with recent
high school graduates and was taught by young teachers, which caused
him stress. Petitioner averred that the other students made fun of
him because of his age, and that his counselors and some teachers did
nothing more than to tell petitioner to ignore the other students.
He also testified that his inability to afford a psychiatrist caused
him stress. Petitioner's wife and friend also provided testimony,
corroborating petitioner's testimony that he was distressed when he
was terminated and thereafter. Petitioner's wife also testified that,
in 1998, she suffered a �mini-stroke� following surgery.
On June 25, 2002, the MSPB AJ determined that the agency's discriminatory
act had no bearing on the petitioner's termination because the agency
could not accommodate petitioner in any vacant position. The AJ noted
that this alone was not a basis for denying compensatory damages.
The AJ then found that, while petitioner presented some evidence of
stress and emotional pain, he did not present evidence to meet the
requirements of Sloan v. U.S. Postal Service, 77 M.S.P.R. 58 (1997).
Specifically, the AJ concluded that petitioner did not show that his
stress and emotional pain were linked to the unlawful discrimination.
The AJ determined that the evidence reflected instead that petitioner's
stress and emotional pain were related to his placement on enforced leave;
his removal from the agency, which would have occurred even absent the
discrimination; and the necessity that he be retrained for a new career.
The AJ found therefore no basis for awarding compensatory damages.
On appeal, petitioner argues, among other things, that he is entitled to
an award of compensatory damages.<2> The agency addresses petitioner's
argument and requests that the decision of the MSPB be left undisturbed.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
The Commission finds that the MSPB AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). The particulars of what relief may be awarded,
and what proof is necessary to obtain that relief, are set forth in
detail in EEOC Notice No. N 915.002, Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991 (July 14,
1992). Briefly stated, the complainant must submit evidence to show
that the agency's discriminatory conduct directly or proximately caused
the losses for which damages are sought. Id. at 11-12, 14; Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994).
Here, petitioner has failed to show a nexus between the agency's
discriminatory conduct, namely not considering the petitioner for some
vacant positions because of a blanket exclusionary policy, and his stress
and emotional pain. Instead, the record reflects that petitioner's
stress and emotional
pain were related to petitioner's removal from the agency, which would
have occurred even absent the discrimination.
We note that, in its FAD, dated February 4, 2000, the agency ordered
management to �take appropriate corrective and preventive measures to
ensure that the violations found do not recur.� To the extent that
management changed its blanket exclusionary policy that in effect
required management not to consider any accommodation for certain
types of positions, complainant is a prevailing party and entitled
to attorney's fees. See Harmon v. Department of Transportation, EEOC
Appeal No. 01950755 (February 2, 1998), aff'd, EEOC Request No. 05980433
(December 8, 2000).
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB. The Commission finds that the MSPB's decision constitutes
a correct interpretation of the laws, rules, regulations, and policies
governing this matter and is supported by the evidence in the record as
a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____12-16-02______________
Date
1 As relief, the FAD provided that: (1) the agency shall assess whether
any vacant positions existed for which petitioner was qualified at the
time he sought accommodation, and if so, shall offer him reinstatement to
this position, or a substantially equivalent position, with attendant back
pay and benefits; (2) management shall take appropriate corrective and
preventive measures to ensure that the violations found do not recur;
(3) management shall commit to petitioner in writing that it will
cease engaging in the discriminatory practices found, and that it will
not retaliate against him; (4) within 60 days of receipt of the FAD,
petitioner shall submit supporting evidence of any compensatory damages
claimed, and the agency shall determine the amount to be awarded within
30 days of receipt of the required information; and (5) within 30 days
of the FAD, petitioner shall submit a petition for any claimed attorney's
fees and costs.
2 We note that the only issue before the Commission is the MSPB AJ's
decision regarding compensatory damages.